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Fire up the document shredder

As expected, the Virginia Supreme Court has today issued its opinion on the Mann emails FOI case. It has decided that the emails of the university are indeed deemed "proprietary" and therefore not subject to disclosure.

130934 American Tradition Inst. v. Rector and Visitors 04/17/2014 The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for "information of a proprietary nature" is to avoid competitive harm, not limited to financial matters. The definition of "proprietary" in prior case law, that it is "a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls," is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements. Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, "searching" includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court's judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.


It's an amazing decision. Having brought state universities under the remit of freedom of information legislation, the legislature now sees the courts effectively writing them out again. Legislators must wonder who is in charge.

The document shredders are being fired up as we speak.


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Reader Comments (30)

As someone remarked on here the other day, it is odd that climate scientists are so reluctant to come out in the open, and prefer to work away behind smoke and mirrors.

Hopefully there will someone in the IT department who has some space available on a handy USB memory stick.

Apr 17, 2014 at 4:28 PM | Registered Commenterlapogus

While we may all be appalled at this decision, hands up anyone who is in the least bit surprised...

Apr 17, 2014 at 4:39 PM | Unregistered CommenterOtterl Rodent

I'm disappointed wit the ruling and from what I know, I'm also not in agreement. However, the Universities are a business and this is a sway towards more business-like operating methods. Most business will try to protect all that they feel is their own private and proprietary information. It seems in this case that the entity who funded is not in the loop.

Apr 17, 2014 at 4:41 PM | Unregistered CommenterRob Schneider

This is potentially very far-reaching in equating "information of a proprietary nature" with anything which could lead to "competitive harm". Universities in the US are in a competitive market place for students thus anything relating to falling standards or - dare I say it - allegations of sexual abuse by sports coaches can now be kept from FOI as this would lead to competitive harm as it would deter students from applying.

Absolutely shocking and completely against the intent of the legislation.

Apr 17, 2014 at 4:41 PM | Unregistered CommenterRob

You may well be right about that USB stick, Lapogus.
It'll take a lot less nerve for a highly p****d -off University employee to be a whistleblower than it would have been back in 2009 with FOIA. When Free Speech is under attack there will be many who will have the motive and perhaps some will have the means and opportunity.
Maybe Mark Steyn won't need Discovery for the courtroom as the evidence will be publicly available online.
Note to Dr Mann: Be extra nice to the drones at work.

Apr 17, 2014 at 4:47 PM | Unregistered CommenterRoyFOMR

Dagnamit! Just noticed an earlier attempt at a joke in my name has backfired! Oh, why do I not read these things more thoroughly? I really should take the effort to log on.

Apr 17, 2014 at 5:03 PM | Unregistered CommenterRadical Rodent

@Rad Rod: I was wondering if your cat had got hold of the keyboard. :-) (Of course, any self-respecting rodent wouldn't have a cat!)

Apr 17, 2014 at 5:10 PM | Registered CommenterHarry Passfield

Why this VA Supreme Court decision 'favoring' government funded scientist secrecy?

In ~1960 Eisenhower warned about the entrenchment of subservient science within government funded programs.

It appears those scientists listened very carefully and did it.

It appears the majority of us did not listen.


Apr 17, 2014 at 5:13 PM | Unregistered CommenterJohn Whitman

"a reasonable fee for exclusion review"

That's a win-win, isn't it? Now they can charge for not supplying the information. Trebles* all round!

*Or whatever they have in Virginia.

Apr 17, 2014 at 5:25 PM | Registered Commenterjamesp

I suspect the shredder will not be fired up just yet.

Many of these documents are discoverable in either the Ball or Steyn litigation under completely different rules. Shredding or erasing them at this juncture would go badly for Mann.

Apr 17, 2014 at 6:02 PM | Unregistered CommenterJay Currie

I wonder whether it's time for that legislature to clarify their laws in this area.

Apr 17, 2014 at 6:30 PM | Unregistered CommenterRoberto

The purpose of the higher education research exemption ... is to avoid competitive harm ...

What competitive harm?

Apr 17, 2014 at 6:49 PM | Unregistered CommenterMikeC

There are some similarities between rings of climate scientists and their obsession with secrecy and other rings in the news.

Apr 17, 2014 at 8:45 PM | Unregistered CommenterBruce

Hopefully taxpayer funding will be shredded too.

Apr 17, 2014 at 10:22 PM | Unregistered CommenterAC1

So much for:
"The (US) Administration is committed to ensuring that, to the greatest extent and with the fewest constraints possible and consistent with law and the objectives set out below, the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community. Such results include peer-reviewed publications and digital data.....

"Policies that mobilize these publications and data for re-use through preservation and broader public access also maximize the impact and accountability of the Federal research investment."

Apr 17, 2014 at 10:46 PM | Unregistered Commenter52

Disclosure would have affected the University financially. Consider the quality of what MM has released and wonder what he considers as too dangerous to release, and you will then know what would happen to public funding of climate "science".

Apr 17, 2014 at 10:50 PM | Unregistered CommenterGraeme No.3

We already have preconceptual science, i.e. the conclusions come first and the research is 'massaged' to support the conclusions. Now we have preconceptual law, the Virginia Supreme Court knew what finding they wanted to make, it then had to torture the law in order to come up with a justification for the finding.

Apr 17, 2014 at 11:31 PM | Unregistered CommenterDocBud

Can we submit a FOIA request to the NSA for one of their copies of Mann's emails?

Apr 17, 2014 at 11:44 PM | Unregistered CommenterDocMartyn

lets us see now they opened this door who rushes to get through it.the fun part is when the greens/left come calling and their told sorry but no on these grounds , as you can bet that it should be 'different' for them

Apr 18, 2014 at 12:05 AM | Unregistered CommenterKNR

However much you want to!!

Apr 18, 2014 at 2:37 AM | Unregistered CommenterAlexander K

Mann & gang act like ducks, walk like ducks, and quack like ducks.

Apr 18, 2014 at 4:04 AM | Unregistered Commenterhunter

where is the Snowden who will download and release these documents

Apr 18, 2014 at 4:17 AM | Unregistered CommenterPeterk

"Mann & gang act like ducks, walk like ducks, and quack like ducks."

Hence all the pusilanimoous calumny directed at them is doomed to roll off as well.

Apr 18, 2014 at 7:03 AM | Unregistered CommenterRussell

What Is the Collective Noun for Ducks?
There are several collective nouns for duck depending on whether the duck is on air, land or water. A bunch of ducks, a paddling of ducks and a raft of ducks all refer to ducks on water, while a safe of ducks, a skein of ducks, a sore of ducks, a string of ducks and a team of ducks refer to ducks on air.

I think a sore of ducks is a good fit (r^2 ~ 0.7 ?).

Apr 18, 2014 at 8:47 AM | Unregistered Commenternot banned yet

Ducks are clever at dodging, with good eyes and loud quacks to warn fellow ducks to flee.
They depend on being able to fly away from troubles.
Yet ducks are tasty when prepared with an orange sauce.

Apr 18, 2014 at 10:02 AM | Unregistered Commenterhunter

Agree with your first statement, hunter, but not the last. Tried it when I was in my late teens and was taught a valuable lifelong lesson: meat and fruit should always be kept well apart.

Apr 18, 2014 at 10:08 AM | Unregistered CommenterDocBud

Perhaps you have not tried Duck a l'orange, lol

Calumny implies unwarranted dislike. Mann & gang warrant so much.
Now they do quack out a lot of calumny: deceit about skeptics, defamation against fellow scientists, false claims of conspiracy.......

Apr 18, 2014 at 11:52 AM | Unregistered Commenterhunter

Hunter, it appears that your baloney detector is in need of adjustment, as it seems deaf to thoie declaring belief in the consequences of radiative forcing " the greatest hoax we have ever seen ".

The ambitious program of litigation and defamation designed to discomfit scientists like Mann has Steyn sweating bulletts instead.

Apr 19, 2014 at 3:13 AM | Unregistered CommenterRussell

No one has defamed Mann. He was treated no worse or better than any other controversial public figure.
The only discomfort he has suffered has been from vestiges of his conscience. Your apparent belief that Mark Steyn is part of conspiracy against Mann should be self-reported to Lewandowsky immediately> I hope he can prescribe a proper round of treatments to cure you of your conspiratorial ideation disorder.
Further more, only a deliberately ignorant imbecile would think, after all of this time, that skeptics think there are no consequences to radiative forcings. If there were no consequences to radiative forcing, we would not be here. Earth would be frozen. Certainly you are not ignorant like that? The hoax is that the consequences of radiative forcing include the need to tax carbon to control weather, to fund endless phony studies declaring normal weather variation as signs of the end of the world, and that Mann's hockey stick is some sort of valid result of science.

Apr 19, 2014 at 3:25 AM | Unregistered Commenterhunter

The notion that anyone has ever denied the concept of radiative forcing, is a strawman - a central plank in the dishonesty that underpins the whole alarmists spiel.

Apr 20, 2014 at 9:50 AM | Unregistered CommenterTuppence

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